HD 197 
1828 
Copy i 



LIBRAE OF CONGRESS 



027 331 559 7 




&wmm&m 



MR. MCKINLEY, OP ALABAMA, 



OX TH£ 



BILL TO GRADUATE THE PRICE 



PUBLIC LANDS. 



DELIVERED IN THE SENATE OF THE UNITED STATES, 



March 26, 1828. 



WASHINGTON: 

PRINTED BY GREEN & JARVIS. 
1828, 



A 



#u* 



Washington, April 15, 1828., 

Sir: The annexed speech is respectfully submitted to your perusal 
and consideration; not for any peculiar merit in the argument, but that it 
may lead to a full and fair investigation of the constitutional powers of 
the General and State Governments, there suggested. 

The great danger to which our free institutions are most subject, are those 
arising from the slow and silent operation of unconstitutional laws. 
Whether their enactment be the result of accident or design, the conse- 
quences to the people, and the difficulties of changing or repealing them, 
will be the same. The force of precedent, whether legislative, executive, 
or judicial, is felt in the whole action of the government, and acknowledged 
by all concerned in the management of its affairs. And, although legis- 
lative precedent ought to have but little influence upon subsequent legis- 
latures, it is too often successfully resorted to, to carry a doubtful mea- 
sure. If the power exercised by the United States over the peculiar in- 
terests of the new States treated of in this speech, be unconstitutional, and 
dangerous in its tendencies and consequences, it is interesting to inquire 
whether the same power may not be extended, by the same means, to all 
the States of the Union, and the whole system of our government be ma- 
terially endangered. If such may be the consequences, the subject de- 
mands the serious consideration of every American. That it may re- 
ceive that consideration, is the object of the author in giving it this mode 
of publicity. 

Very respectfully, 

Your obedient servant, 

J. McKINLEY. 






SPEECH. 



The bill to graduate the price of the Public Lands, and Mr. Hendricks* 
amendment thereto, being under consideration — 

Mr. McKINLEY rose, and spoke, in substance, as follows: 

Mr. President: The great interest felt by the people of Alabama in the 
fate of this subject, makes it my duty to offer, to the consideration of the 
Senate, my views upon the various provisions of the bill, connected with the 
amendment offered by the gentleman from Indiana. (Mr. Hendricks.) 

The bill contains what I conceive to be a wise and salutary change in 
the mode of selling the public lands; and it is proposed by the amend- 
ment to confine the operation of the bill to the Territories of the United 
States, and to cede in full property to the States the public lands within 
their limits. 

Sir, I am fully apprized of the difficulties! have to encounter on this 
subject. The strong partiality of the Senate for the present system has 
been too often manifested to leave a doubt on that point; but the difficulty 
and embarrassment is greatly increased in advocating the amendment, 
as I shall endeavor to show that the United States have no constitutional 
right or claim to the lands in the new States. Here I have to encounte-- 
the long preconceived opinions of many of the Senators, the influence oi 
an established system, long in practice, and the force of precedent. Un- 
der these circumstances it will not be surprising, if some of the doctrines, 
which duty requires me to advocate, should be regarded by some as wild, 
visionary, and untenable. Let that be as it may, they are the result of 
the most mature and deliberate reflection I have been able to give to a 
subject of so much political and pecuniary importance. I have long en- 
tertained the opinion that the United States cannot hold land in any State 
of the Union, except for the purposes enumerated in^the constitution; and 
whatever right they had to the soil while the country remained under ter- 
ritorial governments, passed to the States formed over the same territory 
on their admission into the Union, on an equal footing with the old States. 

A slight attention to the historv and character of this government, will 
satisfy the most sceptical, that tne United States did not, as a govern- 
ment, under the articles of confederation, acquire by conquest, from Great 
Britain, any title to the waste and unappropriated lands (formerly called 
Crown lands,) lying within the chartered limits of any of the parties • 
that league or compact. Whatever might have been the opinions or wish- 
es of some of the States upon the subject, it is obvious that it was not the 
opinion of the Congress of that day, that the United States would (in the 
event of success attending the war in which they were then engaged,) be 
entitled to these lands. If such had been the opinion of Congress, why 
did they pass the resolution of the 13th of September, 1780, asking that 
as a favor which they might demand as a right? On the contrary, it was 
then believed that the States would, in virtue of their sovereignty^ succeed 
to all the rights of the crown over these lands, if they succeeded in esta- 
blishing their independent . \nd thi^ doctrine has been fully sustained 



by th_e opimorts at the Supreme Court of the United States, in the case* 
o? Fletcher ami Peck, and Johnson and Mcintosh. A9 the resolution re 
i erred to, and the subsequent proceedings under it, form the basis of the 
right now exercised over the public lands by the United States within the 
new States, it will be proper to examine the resolution, the cession by Vir- 
ginia to the United States of her waste and unappropriated lands north- 
west of the Ohio river, the ordinance of Congress of 1787, and the cession 
by Georgia to the United States in the year 1802. By this resolution 
Congress requested the States having waste and unappropriated lands in 
the western country, to make liberal cessions to the Union; and promised 
that the lands so ceded should be disposed of for the common benefit of 
the United States, and settled and formed into distinct republican States, 
which States should become members nf the federal Union, and have the 
same rights of sovereignty, freedom, and independence, as the other States. 
1 vol. Laws U. S. p. 475. 

Virginia, with that spirit of patriotism and liberality which character- 
izes all her public acts, granted this request, by conveying to the United 
States all her waste and unappropriated lands northwest of the Ohio river. 
But the same patriotism which induced this great sacrifice of interest on 
the part of Virginia, induced her to secure, as far as practicable, the so- 
vereignty, freedom, and independence of the States thus to be created. 
And, therefore, in the act of the Virginia Legislature and the deed of 
cession, the grant is made upon this express condition: "That is to say, 
upon this condition, that the territory so ceded shall be laid out and form- 
ed into States containing a suitable extent of Territory; not less than one 
hundred, nor more than one hundred and fifty miles" square, or as near 
thereto as circumstances will admit; and thaftUe States so formed shall 
be distinct republican States, and admitted members of the federal Union, 
having the same rights of sovereignty, freedom, and independence, as the 
other States." After the execution of this deed of cession, Congress 
thought proper, on the 13th of July, 1787, to pass an ordinance for the go- 
vernment of the territory northwest of the Ohio, in which the terms and 
conditions expressed in the deed of cession are essentially altered, and 
the following restricted terms for the admission of these new States into 
the Union, are enacted: " The legislatures of these districts or new 
States, shall never interfere with the primary disposal of the soil by the 
United States in Congress assembled, nor with any regulations Congress 
may find necessary for securing the title in such soil to the bona fide pur- 
chaser. No tax shall be imposed on the land, the property of the United 
States." "The navigable waters leading into the Mississippi and St. 
Lawrence, and the carrying places between the same, shall be common 
highways, and for ever free, as well to the inhabitants of said Territory 
as to the citizens of the United States, and those of any other States "that 
may be admitted into the confederacy, without any tax, impost, or duty 
therefor/' By this article of the ordinance, Congress violated the com- 
pact with Virginia. The conditions contained in the act of the legisla- 
ture and deed of cession, are entirely disregarded; and new, and contra- 
dictory conditions imposed upon the people of the territory. Sir, Con- 
gress had no power to change or alter these conditions: not even with the 
consent of Virginia; because they were made for the benefit of the peo- 
ple who were to become citizens of these new States. Those who had 
purchased land from the United States, and settled there under this com 
pact, and for whose government this ordinance was intended, had a vest-. 



od right in those conditions; winch could not be divested by one, or botn 
of the original parties to the compact. Therefore, that portion of the 
ordinance was wholly void and inoperative, which changed the conditions 
of admission. 

Sir, I have already shown, that all the States of the Union, at the close 
of the war, became sovereign and independent; and, in virtue of their 
sovereignty, were entitled to all the waste and unappropriated lands with- 
in their limits. I have shown that this was the opinion of the old Con- 
gress: that it is the opinion of the Supreme Court. It folloMs, then, as a 
necessary conclusion, that some of the rights of sovereignty to which the 
old States were entitled, the new States have been deprived of, by ex- 
tending the restricted conditions of the ordinance of 1787 to their admission. 
All uie writers on public law, the ablest jurists of ancient and modern 
limes, agree that sovereignty is necessarily and inseparably connected 
with the territory and right of soil over which it is exercised. So essen- 
tial is this right, that sovereignty cannot exist without it. Vattel, 165 — 
1 12 — 99. By the conditions on which the new States were admitted into 
i\\e Union, they have been deprived of the right of disposing of, or, in 
nny manner interfering with the disposition of the public land, or any re- 
gulations that Congress may choose to make for securing to the purchasers 
any title it might choose to grant; they have been deprived of the right of 
taxing the lands belonging to the United States, for any length of time 
they may choose to withhold it from sale; they have been deprived, for 
ever, of the right of collecting tolls upon their own navigable waters, al- 
though they may improve their navigation at their own expense, and of 
the right of charging tolls for turnpike roads, which they may make be 
rheTew BtateTto* the same rights of sovereignty, freedom, and indc, 
pendence, as the old? 

Sir, the creation of a sovereign State over this territory, with the con- 
sent of Congress, was, of itself, a transfer of the whole title to the land 
and right of domain of the United States to the new States. If it 
would not have had that effect, why annex these restrictions upon their so- 
verei"ntv to the acts of admission? The very necessity which induced 
the United States to pass the ordinance of 1787, and the subsequent acts 
oxtendin«- its conditions to other States admitted into the Union, 
proves that, without these restrictions the new States would have been en- 
titled to all the land within their limits, and all other rights of eminent 
domain. I have shown that the ordinance of 1787, was a violation of the 
compact with Virginia. I will now endeavor to show that the ordinance 
was repealed and superseded by the Constitution of the United States, 
even if it had been consistent with the compact with A irgima, and 
valid under the articles of confederation. 

Before any of these n^w State? were organized, or admitted into the 
Union, a new era in the political history of the United States occurred. 
The articles of confederation were found to be wholly incompetent to 
effect the national purposes for which they were designed ; and it became 
necessary to new model the General and State Governments. The Con- 
stitution of the United States was formed in 1787, and adopted by the 
requisite number of States in 1788. By this Constitution, the States con- 
ferred upon the Government of the United States all the national, and as 
much of the municipal sovereignty, as they deemed necessary tor the 
ereai purposes of foreign intercourse and national defence. Tb ? residue 



ot the municipal sovereignty was, by the I0th article oi the amendments 
to the Constitution, reserved to the States, or to the people. The States, 
fearino- what might be, and now is, called a liberal construction ot the new 
Constitution, might, by the influence of implication, result in a consolida- 
ted, instead of a confederated Government, suggested and carried this, 
among other amendments. By this amendment, it is expressly declared, 
that "The powers not delegated to the United States, by this Constitu- 
tion, nor prohibited by it, to the States, are reserved to the States re- 
spectively, or to the people/' This provision plainly fixes the boundaries 
of National and State power : where one ends the other begins 3 ^and when 
taken in connexion with the powers granted to the United States, and 
those prohibited to the States, furnishes an unerring rule of construction 
of the whole instrument; which, if adhered to, will for ever keep the 
Federal and State Governments within their proper orbits ; and the 
exercise of power by either, within its legitimate channels. * » ™j»* 
sible to avoid error of construction, if the Constitution of the United 
States be regarded (as' it most frequently is, by American ^tesmfm,)as 
furnishing tffe whole fundamental law governing the action of the Federal 
Government. The Constitutions of the several States form a much 
part of the great code of constitutional law, as the Constitution ot the 
United States. The latter is but an emanation of the former, and depends 
essentially for the character, extent, and ^rcise of its powers, upon a 
correct understanding of the powers reserved to the States. 1 ne states 
intended to grant no "power Jthe United States, that they could exercise 
separately, tnemselves. The creationof to ^^^ 74^ that the 

(^iR^S^t&OmYf ?ftV exeiCrjSe 5 slid uiciciuic U ho.5 nut i/b^caotii^ -to confer 

upon the United States any such power, except so far as it became abso- 
lutely necessary for the exercise of national power. If this view of the 
subject be correct, we must agree that the United States have no power 
to hold land in any of the States, to restrain the States from taxing the 
land, from controlling the navigable waters and public highways within 
their jurisdictions, unless such power is expressly granted by the Consti- 
tution. The only grant of power upon this subject, is to be found in the 
enumeration of the powers of Congress, in the 8th section of the 1st article. 
in these words : " Congress shalliiave power to exercise exclusive legis- 
lation, in all cases whatsoever, over such district, (not exceeding ten 
miles square,) as may, by cession of particular States, and the acceptance 
of Congress, become the seat of Government of the United States ; and to 
exercise like authority over all places purchased by the consent of the 
legislature of the State in which the same shall be, for the erection of forts, 
magazines, arsenals, dock-yards, and other needful buildings." So much 
municipal sovereignty over the soil within the States, and no more, was 
deemed necessary for national purposes ; and, thus far, it has been found 
amply sufficient. The power to purchase land for the erection of "other 
needful buildings," than those specified, authorizes the purchase of land 
for navy yards, custom houses, court houses, jails, &c. Here, the whole 
power of Congress to hold land within a State of the Union, or to make 
compacts with a State for land, ends; and here, also, terminates the ex- 
clusive legislative power of Congress over land within the States ; unless 
these powers can be derived from the power granted to Congress to admit 
new States into the Union. That is a simple and unconditional grant, in 
Kese word? : "New states may ho admitted, by th^ Congress, into the 



Union.*' In the same section, Congress is restrained from erecting a 
new State within the jurisdiction of any other State, or forming a State by 
the junction of two or more States, without the consent of the Legislatures 
of the States concerned, as well as Congress. If the Constitution is to 
be confined in its operation, to its plain and obvious meaning ; if to infer 
powers not granted, from those granted, would be an illegal accretion 
of power to the United States, and an encroachment upon the reserved 
rights and municipal sovereignty of the States ; then Congress have no 
right to annex any condition whatever to the admission of the new States 
into the Union, and such conditions are unconstitutional and void. 

Sir, suppose it were within the competency of Congress and the States 
to enter into compacts, could they enter into such as would abridge the 
sovereignty of the States, and confer upon the United States the sove- 
reignty thus surrendered ? Vattel, in discussing this question, as be- 
tween nations, says: " A nation ought to preserve itself, it ought to pre- 
serve all its members, it cannot abandon them ; and it is under an en- 
gagement to support them in their rank, as members of the nation. It has 
not a right, then, to traffic with their rank and liberty, on account of any 
advantage it may expect to derive from such a negotiation. They have 
joined the society for the purpose of being members of it ; they submit to 
the authority of the State, for the purpose of promoting, in concert, their 
common welfare and safety, and not of being at its disposal, like a farm or 
a herd of cattle." — Page 118. Again, 194, he says: " A treaty pernicious 
to the State, is null, and not at all obligatory, as no conductor of a nation 
has the power to enter into engagements to do such things as are capable 
of destroying the State for whose safety the government is intrusted to 
him. The nation beina; necessarily nhligerl +f\ perform everv thing re- 
quired for its preservation and safety, cannot enter into engagements con- 
trary to its indispensable obligations. In the year 1506, the State's General 
•'of the kingdom of France assembled at Tours, engaged Louis XII. to 
break the treaty he had concluded with the emperor Maximilian, and the 
archduke Philip, his son, because that treaty was pernicious to the 
kingdom. They also decided that neither the treaty nor the oath that 
had°accompanied it, could be binding on the king, who had no right to 
alienate the property of the crown. " High and respectable as this author- 
ity is, I will call the attention of the Senate to one still higher, the obli- 
gations of which operate directly upon our legislative power ; it is the 
Constitution itself. By the 10th section of the 1st article of which, the 
States are expressly prohibited from entering "into any treaty, alliance, 
or confederation" whatever. Every compact between sovereign States is 
a treaty. " A treaty, in Latin, foedus, is a compact made with a view to 
the public welfare, by the .superior power, either for perpetuity or for a 
considerable time." — Vatt 192. " As a State that has put herself under 
the protection of another, has not, on that account, forfeited her character 
of sovereignty, she may make treaties and contract alliances, unless she 
has, in the treaty of protection, expressly renounced that right, But she 
continues for ever after bound by this treaty of protection, so that she can- 
not enter into any engagements contrary to it. " 

Sir, a just application of these principles of the law of nations, taken in 
connexion with the prohibition on the States to enter into ''any treaty," 
proves that the States of this Union have no power to enter into any com- 
pact with the United States, and much less with Congress, for any pur- 
pose whatever, except those enumerated in the Constitution. By the law 



10 



of nations, just referred to, it appears that a State, binding herself by a 
treaty of protection, not to enter into treaties or alliances, is for ever pre- 
cluded from that right. The States of this Union have bound themselves 
by a much more sacred and obligatory instrument, not to " enter in*o any 
treaty,^ alliance, or confederation. " Surely, then, they have no power to 
enter into compacts to abridge their sovereignty. If the Constitution 
prohibits the States from making such treaties with the United States, it 
is equally prohibitory on the United States to enter into such treaties or 
compacts with the States. If the United States can enter into treaties or 
compacts with the new States for the acouisition of sovereignty, land, or 
money, not warranted by the Constitution, she may do the same with 
the old States; and thereby change, amend, or destroy the fundamental 
law of the land by compacts with the Stages. These compacts, if valid 
at all, are the supreme law of the land, and as obligatory on all the peo- 
ple of the United States, as the Constitution itself. TKe States cannot. 
by any act of theirs, release themselves from their operation; they can 
pass no law violating them, nor can Congress. But, by the concur- 
ring consent of both parties, like all other contracts, "they may be 
cancelled. Thus, then, the constitutional law may be changed, by the 
simple operation of making and cancelling a contract. But, Sir, are the 
conditions annexed to the admission of the new States, treaties, compacts, 
or contracts? All the essential qualities necessary to constitute a valid 
contract between individuals by the common law, are recmired by the law 
of nations to constitute a valid treaty or compact between nations or so- 
vereign States. In either case, the parties must be able, that is, they 
&ni£i^i^ must be willing; the subject matter of the 

contiact must be authorized or permitted bylhe law governing it: and the 
contract must be made according to the forms of tha\ aT testing the 

^siTt^TlT^^ forthe admission of t le 
new fetates into the Union, which bv a singular misnomer are called 

s C e s?oneo tlfel^l ^.f^ *^be found ihS^™*^ 
sess one of the legal requisites of a compact. The only compacts that 
Congress can make with the States on such subjects, are tSenumera- 

Itt^ SeCtl ° nS °V¥ C ™ st ^ tion already deferred V, BytUcZ 

sent of Congress, and.the cession and consent of particular States the 
United States may acquire right to the soil within tL juH dicdon of any 
of the States for the seat of Government of the United S ate" for the 
Snilr 1 ' 6 ^ 1118 f° rtS ; ma 3 a zines, arsenals, dock yards, an other 
SSl^it Wl1 ? thus acquired, Congressman exercised 
ticular St! £ r Z Congress may enter into a compact with a par- 

ticular State for the purpose of erecting a new State witnin its iurisdic- 

auxiliary to the national powers 8 He e Swfl ^T™ °?fe and ? 
for the land, and junsd.ct.on over it, within those Slates; and therefore! 



11 

Congress was unable to make the compacts. The other party had still 
less power. The people of the territories had no political power, what- 
ever political rights they may have had. Those territories were not States; 
the inhabitants were nor citizens of States, nor of the United States. 
They could not vote for a President or Vice-President of the United 
States; they could not vote by their represenatives in Congress. It has 
been determined by the Supreme Court of the United States, that the in- 
habitants of the territorial governmen'S are not citizens of States or of 
the United States. They were, therefore, the mere subjects of the United 
States, and bound by their laws, in the enacting of which they had no 
participation, and, of course, could oppose no political resistance to their 
operation. The people of the territorial governments, standing in this 
relation to the United States, were politically passive. And, therefore, 
when Congress passed laws authorizing them to elect members of a Con- 
vention, and authorized that Convention to form a Constitution for the 
government of the State, the people were as much bound by that, as by 
any other law of the United States. The Convention, when thus organiz- 
ed, had not even the nominal option of accepting or rejecting propositions 
in relation to the right of soil, taxation of land, and jurisdiction over navi- 
gable streams, and certain carrying places between them, (as seems to be 
generally supposed). No, Sir, these provisions of the ordinance of 1787, 
were, by these statutes, made the basis of the Constitutions to be formed. 
After pointing out the mode of electing members and organizing the Con- 
ventions, the statutes authorized the Conventions " to form for the people of 
the said State, a Constitution and State government: provided the same 
was republican, and not repugnant to the ordinance of the \§th of July \ 

but they are the only f «*■**" «f£ ^ ^oUtions were not propo- 
a Constitution and State government gtates escnb i ng 

sitions for a compact *»ut were the Uw « authori „ hich they 
to these people a rule of / ctl °"' 7w c [. a nd this is called a compact 
were permitted then to act on that ^ubj e ct, an a ^ cl . 

between the United States ; and th ^ne w States .p be _ 

pie, whenever the people »^ a8ta r^ ly ca W be necessary to carry 
tween them and the Government tt surety between the 

this inquiry further, to iw»|*4 *«« ~™ the latter /eUed their right 
United Slates and the !rew State,, bvw ^ 

&tirra^&^-«^ are — " ional and 

V tr, if this reasoning ^'^^£S^S^4^^ 
States, to the lands ,n the ne ^ States, ana the gtat 

ed for, are reduced to the necessrtj ^»£» | he ara< f ox ical doctrine, 
of the United States alone, and oi "«mtami = don « to the States, of 
?hat Congress can by statute acquire any nght beion not ^ thsta ding 
property or sovereignty, the c ? nstltutl °" ™ ™ if the r&ht of the United 
SE5 paradoxal as'this f^^g^VZJg, exclusive legis- 
lates^ these lands, and tiie right of ^"P^ admitted , an d the most 

lation over them, be 8ustane t d ' *^:Xd wll remain in full force, 
dangerous precedent ever yet established™ 1 je ^ ^^ fo on 

The compact between Georgia and £e V mted ^ Q ^ at 

of the obiections taken to those witn urc 



12 



the time of making it an organized and ^ old State; but she was one of 
the States that adopted the Constitution of the United States, by which she 
bound herself never to enter into any treaty, al hance, or confederation; 
therefore so much of that compact as extended the operation of the ordi- 
nance of 1787 to Mississippi and Alabama, was void, upon the reasons and 
authorities applicable to the compacts with the new States. But so .tar ^ as 
the compact related merely to the erection of new States within the terri- 
tory ceded by Georgia, it is valid and binding, because Congress may erect 
a new Srate within the jurisdiction of another State, with the consent of 
the legislature of such State. See 3d sec. 4th art. Const. U. S. The con- 
sent of the legislature of Georgia, as well as of Congress being had to the 
erection of these States, for that purpose, the compact is constitutional and 
binding See the articles of agreement and cession between the United 
Statestnd the State of Georgia, 1 vol. L. U. S. 448. See also act of Con- 
fess extending the ordinance of 1787 to the Mississippi Territory, od 
vol. L. U. S. 380. . _ 

Sir, I have shown -that all compacts between sovereign States are trea- 
ties; that Congress had no power to make compacts for land or Jurisdiction 
over it, except for certain specified purposes: I have shown that the land 
and jurisdiction over it, and all other rights of eminent domain, belong to 
the old States in virtue of their sovereignty, except so far as they have 
been conferred upon the government of the Union for national P™T oses ? 
that the new States would have been entitled to all the rights which the 
old States enjoyed, if these compacts had not been made; and 1 have 
shown, by irresistible implication, that Congress believed that the nen 

■o l -r * •-■^-J>->^.L< W /i t/ jKitKlu.thfiti: limits, and all the other 

pies of the ordinance of 1787 had not fc£ Lto^o t£m *XT*~ 

out. All compacts between sovereign States beino- troati J 1„a n 

Sir, there is another view of this subject worthy of consider^,'™ Ti 



13 

voluntary act of Congress, and not required by the terms of the compact- 
Before any State, formed out of this territory, was admitted into the Union, 
Virginia had given an interpretation, and her meaning of the words em- 
ployed in one of these conditions, by her compact with Kentucky, by 
which the latter became a sovereign, free, and independent State, and was 
admitted into the Union. At the time the compact was imfcle between the 
United States and Virginia, Kentucky formed a part of what was then her 
waste and unappropriated lands in the western country. She- had com- 
menced appropriating and settling them. In 1789, the Virginia Legisla- 
ture passed an act authorizing the people of Kentucky to form a State 
Constitution; by which act they gave up all the unappropriated land within 
Kentucky, to be disposed of as the new State might think proper. This 
shows what Virginia meant by the condition, "having the same rights of 
sovereignty, freedom, and independence, as the other States," contained 
in her deed of cession to the United States. Because, if she had believed 
it consistent with the sovereignty, freedom, and independence of a repub- 
lican State, to be deprived of eminent domain — if she had thought it con- 
sistent with that equality which ought to subsist between sister States of 
the same Union, it is not probable that she would have given to Kentucky 
land worth more than two millions of dollars. But Virginia was not so 
money- wise as some of the States are at the present day. She was not dis- 
posed to deprive a State of its sovereignty, for the sake of money. So far 
as the course pursued by Virginia towards Kentucky shows her meaning 
of the conditions contained in her deed of cession to the United States, 
it is a good rule of construction; for she had then no particular interest in 
the matter; at least, her interest, if any, was the other way. 

consequences; and *f P»£ le ^K United States shall get less by 
all their constitutional rights, ev ««* avarice seems filing 

this voluntary cession, made Dy ™ l B""£» . t decree, applies to 

to demand. W same course of reasomng „ a reat dJM ^ 
the cession made by Georgia. The cond itton . rf ^ Umted 

the land ceded should be ; disposed of for the com 

If she failed 

the right to i 

independent oiaies '"'"'-"";," "'V, inhabiting these territorial gove 

tract. S^notwithsten^ng the people .nhao They had 

ments had no political po«eis,tl iey p % rameut . When 

aright, by the Constitutmn, to tne b.neMs ot s had a right 

the & Territories were formed into State ^ n ' t fo ^ ting wit h the 

to unconditional admission .into the ^ Union l upon a a ^ 

other States. These people, ^f«j^^ U,L these circum- 
«6w«n^«»iB^"^^ ,, JSS^*W. «iem, than a guar- 
stances, Congress could """"""XlJta^ai, were to convey to B, the 
dian can with his ward. Suppose A, b ) ™ 8 ™ l ' conveye d to him when he 
whole of his estate in trust for Ins only »on to £ ^co y shi of the 



14 



would pronounce this contract to bevoid. A J For fte , tt g ld 

case as that «^ ta *£^£Z&£™* the proposition of yielding 
not even give the former the nghUodec^aep ^^ e?tl tled to 

up their patrimony, but told .™f™ P/™^,^ to the land which, but 
^If-o-overnment, unless you give up to us a 1 1 „ showa to b 

for tnis act would ,ave been «"£&^ J££j& the land now of 
utterly void, upon kga Mind — *™ , ^ ^ of sovereignty of 

compared with the P°^ c * P™* = by mere legislation, by treaty, 
tion involved is this : Can the Umte 4^ , J & rf soverelg „ t y, or 

or by any form of contract ^^^^c^tatU, but .expressly re- 
nronertY,not granted to the former by * e V°"7X is Go yernment, liberty 
££& the fatter i If «*V££l% £ * ^WConstitutiX Au 
and free government cannot be p es * edby i thege vital n . 

the checks and balances necessary forthe prese, interwoven into 

Spies were believed to have ^ -«£££&££. State lights and State 
ffierg texture of fa s flf» «*, g^ST 1 rlnnht Sr rnntTftT^T, 

all the other guards in the Constitution, may be abandoned, if the principles 
contended for by the opponents of this measure, shall prevail, and be prac- 
tised upon. The principle contended for by them, is, that the United 
States can contract with a State of this Union, for a portion of its sove- 
reignty ; for such was the contract with Georgia, and such the contracts 
with the new States, if contracts at all. If a contract of this character is 
valid for a portion of the sovereignty of a State, it would be equally valid 
for the whole. Do the friends of State sovereignty perceive that by sup- 
porting this doctrine they are sustaining a principle which may overturn 
State sovereignty, by the mere operation of money appropriated for the 
purchase of all the disputed rights between this and the State Govern- 
ments ? If the interest which the United States have, or suppose they 
have, in these lands, has such -an influence in the determination of this 
question, what may we not apprehend from the influence of interest or 
money, upon other questions? Sustaining this principle of compacts, 
establishes a precedent for bartering in sovereignty between the United 
States and the States ; and it establishes a still more dangerous precedent. 
It is this: that the ownership of land, by the United States, within a State, 

fives them the right to dispose of it as they please, by the legislation of 
'ongress. Having the possession of the immense revenues derivable from 
commerce, the United States may purchase land in any of the States of 
the Union, from the fee simple owners; and when they have obtained it, 
may grant it in fee simple, fee conditional, or fee tail ; or they may lease it 
out, and improve it in any way they may think proper. They may make 



15 

roads and canals over it, build houses or manufactories ; in short, they may 
do every thing that the lord paramount may do with his own domain. 

Sir, this is not an idle speculation ; this principle was distinctly recog- 
nised a few days since by the Senate, and a part, at least, of its ground 
occupied. A bill passed the Senate authorizing the President of the 
United States to lease out certain lots of land, lying in the State of Illinois, 
for a term of years, and authorizing the President, with the advice and 
consent of the Senate, to appoint an agent or steward, to superintend these 
leasehold estates of the United States, and to collect the rents. Is this 
not establishing the principle that the United States, owning the soil within 
one of the States of the Union, may establish the relation of landlord and 
tenant between the United States and the citizens of that State? Is it 
not establishing the principle that the United States may improve or dis- 
pose of her lands as she pleases? Is it not establishing the principle that 
officers, for the superintendence of such aflfairs, may be appointed by the 
United States ? And what more is necessary to establish the whole of the 
doctrine ? 

Sir, suppose a majority of Congress have in view some favorite project 
of internal improvement within the State of Virginia, for instance, to 
which Virginia opposes her State sovereignty — may not Congress pass a 
law appropriating money and authorizing the purchase cf the land from the 
fee simple owners, for the track of a canal or a road, and thereby confer 
upon Congress the right of legislating over it? And what, then, becomes 
of the State sovereignty of Virginia ? 

Or suppose the United States choose to make a contract directly with 
any of the States for any or all of their sovereignty, as she did with Georgia 
for a portion of hers, would not such compacts become as sacrea as inese 
are? The gentleman from Missouri. (Mr. Barton,) in his speech upon this 
subject, dwelt much upon the sacredness and inviolability of these com- 
pacts. The power has been denied to Congress, by other gentlemen, to 
pass any law contrary to them. What more-reverence and respect could 
be manifested for the constitution? or what more obligatory force would 
that instrument have upon the legislation of Congress? By these compacts 
the new States are reduced to a state of vassalage — they have become the 
mere feudatories of the United States; may not the old States be reduced 
to the same condition, by the same means? These compacts operate here. 
as constitutional law; may not other compacts operate m the same way? 
If they may, then the constitutional law may be changed by compacts. Is 
the Senate prepared to sacrifice the constitution for money? Shall we es- 
tablish principles and precedents which may lead to the destruction of the 
only free government in the world, that the Treasury may be a little 
richer? If all these lands were given up to the States, they would not be 
lost to the United States. Whatever adds to the wealth, or prosperity of 
the States, increases the wealth and prosperity of the United States. Sir, 
which is most important to the people, these lands or the constitution, mo- 
ney or liberty? The gentleman from Missouri, (Mr. Barton,) stated that 
this question of sovereignty of the new States, was one of no importance in 
the consideration of this measure. I have no doubt he thinks so; but, in 
my opinion, a more important question than the one really involved, could 
not engage the attention of Congress, however little interest it may excite 
on the present occasion. 

Inquiry, however, has been awakened on this subject, and it will go on, 
whatever may be the fate of the measure under discussion; and the doc- 



16 

trines here advanced will, 1 trust, gain strength, as the inquiry progresses* 
not in the new States only, but every where, that the subject is investigated 
by the friends of the constitution, of State sovereignty, and of civil liberty. 
Sir, it has been said that these lands ought to belong to the old State's, 
because they all contributed in conquering them from Great Britain, or 
contributed otherwise to their acquisition; that the acquisition of the down 
lands was one of the inducements to the revolution; that they have been 
pledged for the payment of the public debt; and therefore the United States 
cannot m justice to themselves, and good faith to their creditors, relinquish 
them to the new Spates. It has been shown that the successful issue of 
the revolution did not confer upon the United States, as a government, 
the crown lands in the respective States; but that the States in which they 
lay, in virtue of their sovereignty, succeeded to all the previous rights of 
the crown. Such has been the opinions cf the old Congress, of the Con- 
gress under the present Constitution, and of the Supreme Court of the 
United States. The crown lands had, it is true, some influence in pro- 
ducing the revolution, if we are to credit the Declaration of Independence; 
but it was an influence wholly adverse to the arguments urged against this 
measure. The complaint in' the Declaration of Independence against the 
king, on this subject, is in these words: " He has endeavored te prevent 
the population of these States; for that purpose obstructing the laws for 
the naturalization of foreigners; refusing to pass others to encourage, emi- 
gration hither, and raisins; the conditions of new appropriations of lands." 
Sir, the opponents of this bill are welcome to the full benefits of the.se 
complaints against the king of Great Britain; and their just application to 
the existing stare of things here. These very complaints may now be 
jrcsoy urgeti oy me new states against the United States. Is there not, 
now, an attempt, making to discourage or prevent emigration to the new 
States, by refusing to pass laws for that purpose? And, if not, by raising 
the conditions of new appropriations of lauds, the same effect is intended 
to be produced, by refusing to reduce the price to their real value. The 
Secretary cf the Treasury, in his annual report on the state of the finances, 
at the present session of Congress, has entered into a learned and labored 
argument to show that the price of the public lands ought not to be re- 
duced; because it would give too much encouragement to emigration from 
the old to the new States; and thereby prevent the great manufacturers 
from obtaining the labor of the poor class of society at a cheap rate. 
[See the Report, pp. 24-5-6.] He admits that population may be more 
rapidly increased, by encouragement to emigration and agricultural pur- 
suit,*; aed he might have admitted, also, that the sum of human happi- 
ness, and the preservation of republican principles, and our free institu- 
tion-, would be better and more certainly promoted, by the same means. 
But the amount of his argument is, that it is better to increase capital in 
the hands of manufacturers, by compelling the poor to labor for them, than 
to permit the poor to become landholders, at a cheap rate, and pursue agri- 
culture; although population would be thereby increased, and the true 
principles of the government be best preserved. 

Sir, is not this a direct attempt, on the part of the President of the 
United States, through his Secretary, to prevent emigration to the new 
States? Is it not the direct opposition of the executive department of the 
government, against the passage of this bill? It has been before the Senate 
for several preceding sessions: if it passes, its effect will be to encourage 
iKe emigration of the poor class of society to the new States; where they 



17 

may become landholders, at a cheap rate, and rear their families in free- 
dom and independence. The policy of the President and Secretary is, 
to deprive the poor of these great benefits; to force them into the service 
of the wealthy manufacturer; to prevent, as far as possible, the popula- 
tion of the new States; and diminish their political importance m the scale 
of the Union. Have not the new States good cause to make the same com- 
plaint, on the subject of the public land, against the United States, that 
the colonies did against the king of Great Britain? But, Sir, this attempt 
to arrest emigration to the West, is vain and useless: the tide of emigra- 
tion will roll on, in despite of legislation here, or opinions expressed else- 
where. So long as men are free, they will pursue their interest and hap- 
piness according to the dictates of their own judgments. So long as the 
lands are poor and unproductive, and agricultural products at their present 
depressed prices, on this side of the Alleghany, the poor will— -nay, they 
must — seek, on the other, richer and more fertile land; even if they are 
destined to be tenants there. It is better to be a tenant on rich land, than 
a landlord on poor: it is better to be a free man in the West, than a slave 
to a manufacturer in the East. 

The gentleman from Missouri, (Mr. Barton.) says the effect of the 
graduating principle of the bill will produce a rapid depreciation in the 
price of the public land, and a monopoly in the hands of speculators. The 
proposition in the bill is to fix the price of the land according to its quality. 
Is there any thing in this proposition dangerous to the interests of the 
United States, or unjustly favorable to the purchaser ? There are millions 
of acres of land that have been offered for sale at public auction, and would 
not sell at the minimum price, that have remained unsold, some for more 
than twenty years, although it has been subject to entry, by any one 
choosing to apply for it, at two dollars an acre, until 1821, and since that 
time at one dollar and twenty-five cents. Is not this sufficient to prove 
that such land is not worth a dollar and a quarter an acre ? If it is not 
worth a dollar and a quarter, is it wrong, is it doing injustice, to sell it 
for less ? If land that has been in the market for twenty years, had been 
sold at first at sixty -two and a half cents an acre, it would have produced 
twenty-five per cent, more to the Treasury, than it would now, if sold at 
a dollar and a quarter. Calculating the simple interest on the amount at six 

{>er cent, it doubles itself every sixteen years. Gentlemen say that these 
ands are pledged for the payment of the public debt. The debt is more 
than doubled by the interest, since a great deal of this land has been in the 
market, and it will be doubled again, before it will sell for a dollar and a 
quarter an acre. Is this a judicious system of finance and economy ? Is. 
this the way to pay the public debt? I cannot perceive how selling land 
for its value, will produce a rapid depreciation in its price. But if this effect 
could be produced by the passage of the bill, it seems to me impossible that 
the lands could be the subject of profitable speculation. Suppose individu- 
als were to purchase up large quantities of these lands, in the expectation 
of making a profit upon them. If similar lands continued to depreciate in 
the hands of the government, would not these in the hands of the specula- 
tor depreciate in the same ratio ? The longer the speculator held the 
land, the greater must be his loss, if the government lands continue to de- 
cline under this system. Therefore there can be no possible danger to 
the interest of the United States from that quarter. 

Sir, the friends of the present land system are the last that ought to sav 
any thing about speculation. Who is the great land speculator in this courl- 



18 

try ? The United States is the greatest that ever was in this or any other 
country. She obtained from Virginia all her waste and unappropriated 
lands north-west of the Ohio river, under a solemn pledge to sell them for 
the common benefit of ,all the States, and apply the proceeds to the dis- 
charge of their war debts. This was expected to be done speedily, and 
sovereign, free, and independent States erected over the territory ceded, 
as soon as there should be sufficient population. All these pledges have 
been disregarded ; the public debt has not been discharged by this fund; 
the States created there have been deprived of their sovereignty; and now 
the lands are to be held up for high prices, to the great detriment of these 
new States. These lands have already produced to the Treasury upwards 
of twenty-two millions of dollars, and very large bodies of them remain un- 
sold. In violation of the constitution, the United States purchased from 
Georgia all the country now forming the States of Mississippi and Alaba- 
ma, which had previously been the subject of the most fraudulent system 
of legislative speculation. They paid nothing for it, but promised payment 
to Georgia out of the proceeds of the sales; compromised with the Yazoo 
company of speculators, promising payment in the same way. They is- 
sued stock to the amount of six millions two hundred and fifty thousand 
dollars, called Mississippi stock, delivered it in payment, and made this 
stock receivable in payment for the lands when sold; thus creating an im- 
mense artificial fund, not based upon the specie capital of the country, for 
the purpose of ensuring high prices for the lands, and enriching the Trea- 
sury at the expense of the citizens. The result was as might have been 
expected. This Mississippi stock was thrown into the market; and at the 
sales of these lands was worth just as much as the hard dollars of the 
planters. The lands sold for unheard of prices; the citizens were many 
of them ruined by their purchases; their money redeemed this stock, and 
the United States pocketed a clear profit of upwards of eight millions of 
dollars by the sale of much less than half the lands, without the advance of 
a dollar of the purchase money. And not content with wholesale and re- 
tail speculation, they laid out towns, where nature never designed towns 
should be, puffed them by their agents, and actually descended to ped- 
dling in the lots. 

Ami now we arc told, that it is dangerous and immoral to encourage a 
system of speculation among our citizens. Sir, while the government 
gives such examples of successful speculation to its citizens, they will not 
believe that it is demoralizing to speculate in land; and they will follow 
this illustrious example. If this system of land jobbing and speculation js 
pernicious to society, let the government abandon it, and set an example 
of moderation, of justice, and fair dealing, by restoring to the new States 
their violated sovereignty. The territorial governments, within which the 
constitution authorizes the legislative action of Congress, afford an ample 
field for the operation of the land system, without extending it to the 
States. And there, this graduating plan will be found highly beneficial. 
The gentleman from Missouri, (Mr. Benton,) read in his place, this morn- 
ing, a statement showing the beneficial effects of a system like this in the 
State of Tennessee. There it produced large sums of money to the 
Treasury, and no speculation among the citizens. None of the evils so much 
.deprecated by the gentleman from Missouri, (Mr. Barton,) resulted 
from the operation of this system in Tennessee. We may, therefore, 
fairly conclude, they will not happen to the United States, it we adopt the 
same system. Another proposition contained in this bill, will effect, par- 



19 

tdally, what the amendment proposes. After this system of graduating 
the prices shall have exhausted itself, by disposing of all land worth twen- 
ty-five cents and upwards per acre, the residue is to be subject to donations 
tor one year to actual settlers, and whatever may be left after this opera- 
tion, is to be ceded in full property to the States. Should the amend- 
ment be rejected, the operation of the bill would, within some reasonable 
time, give to the States complete jurisdiction over the lands within their 
limits. Admitting, for sake of the argument, that the United States 
have a right to hold these States as vassals and feudatories: Would it be 
good policy, would it be generous, would it be consistent with our scheme 
of government to do it ? You deprive them of many of the essential at- 
tributes of sovereignty: control the internal police and economy of a go- 
vernment called free and independent. They are deprived of the right 
of regulating the settlement and improvement of the country, in that 
mode which might be best calculated to promote their happiness and pros- 
perity. They are deprived of the revenue derivable from the soil, the 
most certain and available source o f revenue in any country. They are 
subject to the operation of laws of the United States upon subjects purely 
municipal, whicli do not operate in the old States, and winch they have a 
right to pass for themselves, or not, according to their sovereign will and 
pleasure. A majority of Congress represent the old States, and are, of course, 
wholly irresponsible to -the citizens of the new, for any laws they may 
choose to pass on these subjects. They are ignorant of the peculiar wants 
and wishes of the people they are legislating for; and when those who repre- 
sent those people bring their petitions and wants before Congress, their 
statements and representations of the actual condition of things, are often, 
to their great mortification, received here " with grains of allowance." 
The President of the United States has the discretionary power of bring- 
ing as much or as little of the public land into market, annually, as he 
chooses. In the exercise of this power, he may give a preference to the 
settlement and population of one State over another, or he may restrain 
the settlements entirely, for the purpose of carrying into effect the policy 
of the Secretary of the Treasury. I do not mention these as complaints 
against the Executive, but against the operation of such principles, be- 
cause the same result might take place by the exercise of the same power 
by a majority of Congress, and the people interested be equally without' 
remedy. 

Sir, the Legislature of the State I have the honor, in part, to represent, 
taking into consideration these grievances, addressed to the present Congress 
a respectful memorial, proposing to purchase all the lands within her limits, 
that she might, thereby, acquire full sovereignty within her jurisdiction. 
This memorial, I had the honor of presenting to the Senate, and, upon 
which, a Committee was raised. A majority of that Committee decided 
ao-ainst selling the lands to Alabama, preferring the present, so much eulo- 
oized system. If the United States refuse to give, or sell to us, what we 
believe we are constitutionally entitled to, we certainly have good cause 
of complaint, and will continue to complain until we obtain our rights. 



LIBRARY OF CONGRESS 



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